Los Angeles
Case Number(s): 08-O-12071
In the Matter of: Cesar A. Lopez Bar #195868 A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Cindy McCaughey, DTC, Office of Chief Trial Counsel, 1149 S. Hill Street, Los Angeles, CA 90015, 213/765-1491, Bar#222126
Counsel for Respondent: In Pro Per Respondent, Cesar A. Lopez, 8280 Florence Ave., Ste 220, Downey, CA 90240, 562/869-8296, Bar# 195868
Submitted to: Settlement Judge, State Bar Court Clerk’s Office Los Angeles
Filed: March 29, 2011
<<not>> checked. PREVIOUS STIPULATION REJECTED
Note: All information required by this form and any additional information which cannot be provided in the space provided, must be set forth in an attachment to this stipulation under specific headings, e.g., "Facts," "Dismissals," "Conclusions of Law," "Supporting Authority," etc.
1. Respondent is a member of the State Bar of California, admitted June 5, 1998.
2. The parties agree to be bound by the factual stipulations contained herein even if conclusions of law or disposition are rejected or changed by the Supreme Court.
3. All investigations or proceedings listed by case number in the caption of this stipulation are entirely resolved by this stipulation and are deemed consolidated. Dismissed charge(s)/count(s) are listed under "Dismissals." The stipulation consists of 13 pages, not including the order.
4. A statement of acts or omissions acknowledged by Respondent as cause or causes for discipline is included under "Facts."
5. Conclusions of law, drawn from and specifically referring to the facts are also included under "Conclusions of Law".
6. The parties must include supporting authority for the recommended level of discipline under the heading "Supporting Authority."
7. No more than 30 days prior to the filing of this stipulation, Respondent has been advised in writing of any pending investigation/proceeding not resolved by this stipulation, except for criminal investigations.
8. Payment of Disciplinary Costs-Respondent acknowledges the provisions of Bus. & Prof. Code §§6086.10 & 6140.7. (Check one option only):
<<not>> checked. Costs are added to membership fee for calendar year following effective date of discipline.
checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: The two years following the effective date of the disciplinary order issuing as the result of this stipulation. 2012 and 2013 (two) (Hardship, special circumstances or other good cause per rule 5.132, Rules of Procedure.) If Respondent fails to pay any installment as described above, or as may be modified by the State Bar Court, the remaining balance is due and payable immediately.
<<not>> checked. Costs are waived in part as set forth in a separate attachment entitled "Partial Waiver of Costs".
<<not>> checked. Costs are entirely waived.
Case Number(s): 08-O-12071
In the Matter of: Cesar A. Lopez
a. Restitution
checked. Respondent must pay restitution (including the principal amount, plus interest of 10% per annum) to the payee(s) listed below. If the Client Security Fund (“CSF”) has reimbursed one or more of the payee(s) for all or any portion of the principal amount(s) listed below, Respondent must also pay restitution to CSF in the amount(s) paid, plus applicable interest and costs.
1. Payee: Santiago Nunez
Principal Amount: $4,000.00
Interest Accrues From: June 16, 2005
checked. Respondent must pay above-referenced restitution and provide satisfactory proof of payment to the Office of Probation not later than September 1, 2011.
<<not>> checked. Respondent must pay the above-referenced restitution on the payment schedule set forth below. Respondent must provide satisfactory proof of payment to the Office of Probation with each quarterly probation report, or as otherwise directed by the Office of Probation. No later than 30 days prior to the expiration of the period of probation (or period of reproval), Respondent must make any necessary final payment(s) in order to complete the payment of restitution, including interest, in full.
1. Payee/CSF (as applicable)
Minimum Payment Amount
Payment Frequency
<<not>> checked. If Respondent fails to pay any installment as described above, or as may be modified by the State Bar Court, the remaining balance is due and payable immediately.
<<not>> checked.
1. If Respondent possesses client funds at any time during the period covered by a required quarterly report, Respondent must file with each required report a certificate from Respondent and/or a certified public accountant or other financial professional approved by the Office of Probation, certifying that:
a. Respondent has maintained a bank account in a bank authorized to do business in the State of California, at a branch located within the State of California, and that such account is designated as a “Trust Account” or “Clients’ Funds Account”;
b. Respondent has kept and maintained the following:
i. A written ledger for each client on whose behalf funds are held that sets forth:
1. the name of such client;
2. the date, amount and source of all funds received on behalf of such client;
3. the date, amount, payee and purpose of each disbursement made on behalf of such client; and,
4. the current balance for such client.
ii. a written journal for each client trust fund account that sets forth:
1. the name of such account;
2. the date, amount and client affected by each debit and credit; and,
3. the current balance in such account.
iii. all bank statements and cancelled checks for each client trust account; and,
iv. each monthly reconciliation (balancing) of (i), (ii), and (iii), above, and if there are any differences between the monthly total balances reflected in (i), (ii), and (iii), above, the reasons for the differences.
c. Respondent has maintained a written journal of securities or other properties held for clients that specifies:
i. each item of security and property held;
ii. the person on whose behalf the security or property is held;
iii. the date of receipt of the security or property;
iv. the date of distribution of the security or property; and,
v. the person to whom the security or property was distributed.
2. If Respondent does not possess any client funds, property or securities during the entire period covered by a report, Respondent must so state under penalty of perjury in the report filed with the Office of Probation for that reporting period. In this circumstance, Respondent need not file the accountant’s certificate described above.
3. The requirements of this condition are in addition to those set forth in rule 4-100, Rules of Professional Conduct.
d. Client Trust Accounting School
<<not>> checked. Within one (1) year of the effective date of the discipline herein, Respondent must supply to the Office of Probation satisfactory proof of attendance at a session of the Ethics School Client Trust Accounting School, within the same period of time, and passage of the test given at the end of that session.
IN THE MATTER OF: Cesar A. Lopez, State Bar No.: 195868
STATE BAR COURT CASE NUMBER: 08-O-12071
PENDING PROCEEDINGS
The disclosure date referred to on page two, paragraph (A)(7) is March t, 2011.
FACTS:
Respondent admits that the following facts are true and that he is culpable of violations of the specified Rules of Professional Conduct and Business & Professions Code sections as follows:
1. On June 16, 2005, court appointed appellate counsel, Anthony J. Dain ("Dain"), filed the opening brief on appeal of Emmanuel Nunez’ ("Nunez") criminal convictions pending in the Court of Appeal, Fourth Appellate District in People v. Emmanuel Nunez, case no. G034585.
1. Nunez, a minor at the time, hired Respondent through Nunez’ father, Santiago Nunez, to substitute in as counsel and complete the appeal and/or petition for writ of habeas corpus.
2. On June 16, 2005 Santiago Nunez entered into a written agreement with Respondent for legal services. Respondent received a total of $4,000 in advance fees from Santiago Nunez.
3. The fee agreement, written in Spanish, specifically described the services to be rendered by Respondent as follows: give advice, get in touch with current counsel, prepare briefs on appeal in the case, and represent Nunez in hearings on appeal.
4. Respondent took no action to substitute in as counsel on appeal.
5. Respondent did not prepare or file any pleadings on behalf of Nunez for the appeal or for any other post-conviction proceedings.
6. Between June 2005 and January 2008, Nunez, who remains incarcerated, contacted Respondent in writing numerous times seeking status updates on his appeal. Respondent received these letters but did not reply to Nunez’ inquires.
7. The Court of Appeal affirmed the trial court’s judgment on June 7, 2006 and on August 16, 2006, the Supreme Court denied a petition for writ of review.
8. On January 10, 2008, Nunez wrote to Respondent demanding an explanation about why respondent had not substituted in as counsel. Respondent received the letter and failed to reply.
9. Respondent has not refunded any part of the $4,000 paid to him by Santiago Nunez.
10. State Bar Investigator Shelia Campbell notified Respondent in a letter dated May 29, 2008 that Nunez had filed a complaint with the State Bar relating to Respondent’s conduct in handling his appeal.
11. Respondent received the State Bar’s letter and failed to reply or otherwise respond to the State Bar investigation of this matter.
12. In a follow up letter dated June 16, 2008, State Bar Investigator Campbell confirmed that she received no reply from Respondent to her previous letter regarding the Nunez complaint and requested a response to the complaint no later than June 30, 2008.
13. Respondent received the State Bar’s second letter of June 16, 2008 and failed to reply or otherwise respond to the State Bar investigation.
CONCLUSIONS OF LAW:
1. By failing to substitute in as counsel for Nunez and failing to perform any legal services of value for Nunez, Respondent intentionally, recklessly or repeatedly failed to perform legal services with competence in willful violation of Rules of Professional Conduct, Rule 3-110(A).
2. By failing to advise Nunez that Respondent did not substitute in as counsel and would not pursue the appeal or any writ as agreed, Respondent failed to keep a client reasonably informed of significant developments in a matter which Respondent had agreed to provide legal services, in willful violation of Business and Professions Code section 6068(m).
3. By failing to return any part of the $4,000 advance fee upon the effective termination of his employment, Respondent failed to refund promptly any part of a fee paid in advance that has not been earned in willful violation of Rules of Professional Conduct, Rule 3700(D)(2).
4. By failing to provide a written response to Nunez’ complaint, or otherwise cooperate with the State Bar’s investigation, Respondent failed to cooperate and participate in a disciplinary investigation pending against him in willful violation of Business and Professions Code section 6068(i).
WAIVER OF VARIANCE BETWEEN NOTICE OF DISCIPLINARY CHARGES AND STIPULATED FACTS AND CULPABILITY
The parties waive any variance between the Notice of Disciplinary Charges filed on January 6, 2011 and the facts and/or conclusions of law contained in this stipulation. Additionally, the parties waive the issuance of an amended Notice of Disciplinary Charges. The parties further waive the right to a formal hearing on any charge not included in the pending Notice of Disciplinary Charges.
COSTS OF DISCIPLINARY PROCEEDINGS
Respondent acknowledges that the Office of Chief Trial Counsel has informed him that as of March 1,2011, the prosecution costs in this matter are estimated to be $2,426.00. Respondent further acknowledges that should this stipulation be rejected or should relief from the stipulation be granted, the costs in this matter may increase due to the cost of further proceedings.
AUTHORITIES SUPPORTING DISCIPLINE
STANDARDS FOR ATTORNEY SANCTIONS
To determine the appropriate level of discipline, the standards provide guidance. Drociak v. State Bar (1991) 52 Cal.3d 1085; In the Matter of Sampson, 3 Cal. State Bar Ct. Rptr. 119. In this case, the applicable Standards for Attorney Sanctions for Profession misconduct include 1.3, 1.7(a), 2.4 and 2.6
Standard 1.3 provides in pertinent part that the "primary purposes of disciplinary proceedings ... and of sanctions imposed upon a finding or acknowledgement of a member’s professional misconduct are the protection of the public, the courts and legal profession; the maintenance of high standards by attorneys and the preservation of public confidence in the legal profession."
Pursuant to Standard 1.7(a):
(a) If a member is found culpable of professional misconduct in any proceeding in which discipline may be imposed and the member has a record of one prior imposition of discipline as defined by standard 1.2(f), the degree of discipline imposed in the current proceeding shall be greater than that imposed in the prior proceeding unless the prior discipline imposed was so remote in time to the current proceeding and the offense for which it was imposed was so minimal in severity that imposing greater discipline in the current proceeding would be manifestly unjust.
Pursuant to Standard 2.4:
Culpability of a member of willfully failing to perform services in an individual matter or matters not demonstrating a pattern of misconduct or culpability of a member of willfully failing to communicate with a client shall result in reproval or suspension depending upon the extent of the misconduct and the degree of harm to the client.
Pursuant to Standard 2.6, culpability of a member of a violation of section 6068 the Business and Professions Code shall result in disbarment or suspension depending on the gravity of the offense or the harm, if any, to the victim, with due regard to the purposes of imposing discipline set forth in Standard 1.3.
While the Standards provide guidance, a disciplinary recommendation must be consistent with the discipline in similar proceedings. See Snyder v. State Bar (1990) 49 Cal.3d 1302.
In Matter of Aguiluz (Review Dept. 1992) 2 Cal.State Bar Ct.Rptr. 32, the attorney was given one year stayed suspension and two years probation for failing to perform competently and abandonment of the clients’ case without notifying them, returning their file, or shielding their rights from foreseeable prejudice in a single matter. The attorney denied to his clients that he had withdrawn as their counsel and refused to give the clients their file until they paid him additional fees. Both mitigating and aggravating circumstances were found, but the attorney had no prior
discipline.
Moreover, the recommended discipline must rest upon a balanced consideration of relevant factors. In the Matter of Sampson, 3 Cal. State Bar Ct. Rptr. 119. In this case, the parties submit a stayed suspension is appropriate with the conditions of probation attached herein.
Case Number(s): 08-O-12071
In the Matter of: Cesar A. Lopez
By their signatures below, the parties and their counsel, as applicable, signify their agreement with each of the recitation and each of the terms and conditions of this Stipulation Re Facts, Conclusions of Law and Disposition.
Signed by:
Respondent: Cesar A. Lopez
Date: March 17, 2011
Respondent’s Counsels Signature:
Date:
Deputy Trial Counsel: Cindy McCaughey
Date: March 17, 2011
Case Number(s): 08-O-12071
In the Matter of: Cesar A. Lopez
Finding the stipulation to be fair to the parties and that it adequately protects the public, IT IS ORDERED that the requested dismissal of counts/charges, if any, is GRANTED without prejudice, and:
<<not>>checked. The stipulated facts and disposition are APPROVED and the DISCIPLINE RECOMMENDED to the Supreme Court.
checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set forth below, and the DISCIPLINE IS RECOMMENDED to the Supreme Court.
checked. All Hearing dates are vacated.
Page 7- Financial Conditions- Section (a): Delete the date “September 1, 2011 Add “Within 90 days after the effective date of the Supreme Court Order in this matter.”
The parties are bound by the stipulation as approved unless: 1) a motion to withdraw or modify the stipulation, filed within 15 days after service of this order, is granted; or 2) this court modifies or further modifies the approved stipulation. (See rule 5.58 (E) & (F), Rules of Procedure.) The effective date of this disposition is the effective date of the Supreme Court order herein, normally 30 days after the file date. (See rule 9.18(a), California Rules of Court.)
Signed by:
Judge of the State Bar Court: Richard A. Platel
Date: March 22, 2011
[Rules Proc. of State Bar; Rule 5.27(B); Code Civ. Proc., § 1013a(4)]
I am a Case Administrator of the State Bar Court of California. I am over the age of eighteen and not a party to the within proceeding. Pursuant to standard court practice, in the City and County of Los Angeles, on March 29, 2011, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING
in a sealed envelope for collection and mailing on that date as follows:
checked. by first-class mail, with postage thereon fully prepaid, through the United States Postal Service at Los Angeles, California, addressed as follows:
Cesar A. Lopez, Esq.
8280 Florence Ave Ste 220
Downey, CA 90240
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Cynthia B. McCaughey, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on March 29, 2011.
Signed by:
Julieta E. Gonzales
Case Administrator
State Bar Court